When the Pentagon announced last month that military prosecutors had entered into a plea deal with three accused Sept. 11 terrorists that would spare them the death penalty, the political blowback was fast and furious. 

"Unthinkable," said Speaker of House Mike Johnson about the deal in a posting on X.   "A disgrace," thundered Sen. Ted Cruz. "We need a president who kills terrorists, not negotiates with them," proclaimed Ohio Sen. JD Vance,  Donald Trump's vice presidential running mate.   

It didn't take long for Secretary of Defense Lloyd Austin to respond as well. Two days after the deal became public, and in the aftermath of the fierce congressional criticism, Austin,  in a surprise move,  threw out^[1] the negotiated plea bargain with 9/11 mastermind Khaled Sheikh Mohammed and two co-defendants and removed the Pentagon official, retired Brig. Gen. Susan K. Escallier, who green lighted the deal, from authority over the matter. 

The decision by Austin may well have headed off a potential political problem for the White House, and by extension Democratic presidential nominee Vice President Kamala Harris,  defusing charges by the GOP -- and some 9/11 family members^[2] -- that the Biden administration was "soft" on murderous terrorists. 

But now, the secretary's move--and the GOP attacks that preceded it--are the focus of a new court challenge that threatens to throw yet another legal monkey wrench into the seemingly endless 9/11 cases. According to a top legal expert, it could also force Austin himself to take the witness stand.

In still sealed court papers filed on Monday, the lawyer for one of the 9/11 defendants argues that Austin's extraordinary intervention in the case must be overturned because it was taken in response to political pressure from Congress and therefore constitutes "unlawful" command influence over a military proceeding. 

"This is a clear example of political influence," said James Connell, the lawyer for Ammar al Baluchi, one of the accused 9/11 defendants who allegedly helped finance the attack and also happens to be KSM's nephew. (The motion is not yet public -- it first must be cleared by military authorities -- but Connell confirmed the filing to SpyTalk and said it includes a demand that Austin and the convening authority who the secretary removed, retired Brig. Gen. Escallier, testify about how and why key decisions about the plea bargain were made.) 

The prohibition on "unlawful" command influence -- essentially barring military commanders from improperly influencing judicial proceedings -- is enshrined in the U.S. Uniform Code of Military Justice^[3] and was written into the law^[4] passed by Congress in 2009 creating the military commissions overseeing the 9/11 case in Guantánamo.  

But establishing exactly what constitutes "unlawful" influence or the appearance of unlawful influence can be tricky and is currently at issue in the U.S. Court of Appeals for the District of Columbia Circuit in a case involving former U.S. Army soldier Bowe Bergdahl. (Bergdahl, who walked off his post in Afghanistan in 2009 and was held captive by the Taliban for five years, was prosecuted after Senator John McCain, who was chairman of the Senate Armed Services Committee at the time, said^[5] he was "clearly a deserter" and threatened to hold a committee hearing if he was not punished. ) 

Eugene R. Fidell, who teaches military law at Yale Law School and has represented Bergdahl since 2014, said the issue of whether unlawful influence occurred in the 9/11 military commission case is serious and could require live testimony from Austin and others, as well as the production of pertinent documents, to determine what influenced his decision to intervene. 

"You can't tell whether there was unlawful influence without discovery," Fidell said in an interview. "Based on what is currently known, defense counsel certainly have strong reason to pursue the issue and get to the bottom of things." 

Asked for comment on the motion alleging "unlawful" command influence by the secretary, and whether Austin or his staff had communications with members of Congress or the Biden White House about his decision, a  Defense Department spokesperson emailed: "We are not going to respond to any potential court filing directly, as the  9/11 military commissions case is in active litigation and we will let that process play out. Nor are we going to get into the background of who said what, when. But, as we have said, the Secretary believes that a decision of this magnitude should rest with him, and he acted accordingly. He exercised his own independent judgment in making this decision."

The spokesperson continued: "Remember, the Secretary has long believed that the families of the victims, our service members, and the American public deserve the opportunity to see military commission trials carried out in this case. The White House and Department of Defense were of course in touch, as we are on a variety of issues every day, as appropriate."

But if Austin's goal is to see the military commission case against KSM and his co-defendants carried to trial it remains far from clear when, or even whether, that can take place. The case accusing them of committing the worst terror attack in U.S. history has dragged on for well over a decade, in large part because of endless complications arising from the fact that KSM and some of the other defendants were  tortured at CIA black site prisons, making their subsequent confessions legally problematic at best.  

Faced with multiple legal hurdles in bringing the case to trial, prosecutors at Guantánamoinitiated plea negotiations with lawyers for the 9/11 conspirators last year, finally agreeing last month to a deal^[6] under which KSM and two of his co-defendants, Walid bin Attach and Mustafa al-Hawsawi, would plead guilty to the murder of 2,976 people in exchange for the government's agreement not to pursue the death penalty. 

But by revoking the agreement, Austin has now given the defense lawyers yet another avenue to further prolong the case given that any ruling by the military commission court in Guantánamo on unlawful command influence can later be appealed by either side to the federal courts in Washington. 

"You've tacked on another year or two" to legal challenges over the case, said Fidell. (In another potential sign of further delays, the judge overseeing the case, Col. Matthew McCall, asked the parties on Monday to file briefs on whether Austin, as the "superior convening authority" overseeing the casehad the authority to take the action he did.) 

Austin's move to block the plea deal also cuts off one opportunity that had been opened up under the proposed agreement: a chance for the families of 9/11 victims to pose questions to the terrorist conspirators about why and how they pulled off their hijacking of commercial airplanes that crashed into the World Trade Towers, the Pentagon and a field in Pennsylvania. 

That prospect has taken on new significance in recent weeks amid disclosures that lawyers for the 9/11 families have obtained new evidence -- unavailable to the federal commission that investigated the attacks two decades ago -- pointing to a possible Saudi support structure^[7] for two of the 9/11 hijackers in Southern California. 

But Austin's intervention essentially removes "the best chance" the 9/11 families would have had to get answers from KSM and the other co-conspirators about what they might have known about such help from possible Saudi actors, said Connell, the defense lawyer who filed the motion this week on "unlawful" command influence. "It's a terrible irony" that now won't happen -- unless Austin's decision is reversed, he said. 

This article first appeared on Spytalk.co^[8].

New military recruits will get baseline cognitive testing and training instructors will have to stand farther away when some weapons are being fired under new Pentagon policies aimed at reducing troops' risk of brain injuries from blast exposure.

The policies were laid out in a memo from Deputy Defense Secretary Kathleen Hicks released Friday afternoon that comes after increasing pressure from lawmakers to do more to prevent brain injuries. The updates also come after reporting from Military.com and other news outlets on the risks of brain injuries among service members and the Pentagon's slow response to the issue.

"The health and well-being of our service members and civilian personnel are crucial to maintaining the U.S. military's status as the most capable and ready fighting force in the world," Hicks said in a statement about the memo. "To maintain that advantage, I have directed the development of a comprehensive policy to manage risks associated with blast overpressure, integrating various department and military service initiatives and directives into a unified Warfighter Brain Health (WBH) Initiative."

Read Next: Fatal Marine Osprey Crash Investigation Points to Pilot Error, Safety Lapses While Revealing Heroic Rescue Effort^[1]

Blast overpressure is any pressure caused by a shockwave that is over the normal pressure in the atmosphere. A growing body of evidence indicates that troops are at risk of brain injury-causing blast overpressure not just from enemy attacks but also from routine military activities such as repeatedly firing artillery. Further, those brain injuries are causing devastating symptoms for service members and veterans, such as increased risk of suicide, as Military.com previously reported^[2].

To address those issues, Hicks' memo^[3] lays out a series of new steps to monitor service members' brain health and reduce their exposure to blasts.

Perhaps most significantly, the department will track all service members' cognitive health from the beginning of their careers -- a step lawmakers have been calling for but that Pentagon officials have previously been reluctant to embrace. The memo directs the Pentagon to ensure that all new active-duty and reserve recruits undergo cognitive assessments as part of the entry process by the end of 2024.

Each service will also have to identify and track all personnel who are potentially exposed to blast overpressure in a Defense Department database, with special priority placed on troops who have a specialty or rating that, "by nature of operational activities, regularly places them at increased risk of [blast] exposures," the memo says.

A table included in the memo lists nearly 100 jobs in the Army^[4], Navy^[5], Marine Corps^[6] and Air Force^[7] at increased risk of blast overpressure, showing many of the specialties are combat arms, special operations, or weapons technicians and operators.

Noting that cognitive impairment has been seen from blasts with as low as 4 pounds per square inch of pressure, another table attached to the memo lists weapons in the military's inventory that meet that threshold. The weapons include .50 caliber guns and rifles, mortars and howitzers, as well as a few shoulder-mounted anti-tank weapons and breaching explosives.

As such, the memo directs that certain personnel involved in training, such as instructors and range safety officers, should stand farther away when those weapons are being fired. For example, the minimum standoff distance for an M3 anti-armor and anti-personnel weapon system is 16 feet, while the minimum for an M107 Sniper Rifle^[8] is 7 feet. Still, the memo says that personnel can stand closer if standing farther away "inadvertently introduces a safety risk."

While the new policies address some of lawmakers' concerns, they do not go as far as lawmakers have been calling for. For example, a wide-ranging bipartisan bill introduced earlier this year^[9] would require modifying some weapons systems to reduce the blast exposure to the person firing the weapon.

Elements of that legislation were included in both the House and Senate version of this year's annual defense policy bill that Congress is expected to pass into law before the end of the year.

A spokesperson for Sen. Elizabeth Warren, D-Mass., one of the lead sponsors of the blast exposure bill, did not respond to a request for comment Monday on the Pentagon's new policy. But she and other lawmakers have previously pushed the department to take more aggressive action.

"The department needs to take more urgent action to mitigate blast overpressure and support service members," Warren; Sen. Joni Ernst, R-Iowa; Rep. Ro Khanna, D-Calif.; and other lawmakers wrote in a letter to a government watchdog^[10] last month. "Otherwise, troops will continue to struggle to get the care they need and deserve."

Although evidence was growing as early as the late 2000s that blast overpressure was responsible for head injuries unique to military service members, the Defense Department dragged its heels to address the problem.

In 2008, the Army's Program Executive Office Soldier fielded a sensor with the 101st Airborne Division to measure pressure waves from blasts, while at the same time, the Defense Advanced Research Projects Agency sought wearable technology to measure the level of blast experienced by service members.

The systems had drawbacks. The Army's gauges measured what happened to a soldier's helmet -- including any movements, bumps or strikes -- and used an algorithm to estimate the concussive impact and extent of injury, without actually measuring what was happening inside the wearer's head. DARPA's project, which got underway in 2010 and measured overpressure from three different sensors on a service member's body armor, detected the most exposure in troops whose jobs were to fire heavy weapons.

The data seemed to indicate that repeated exposure to blasts that were much more common than roadside bomb attacks could add up and cause brain injuries, and that weapons such as recoilless rifles, shoulder-fired rockets, artillery and mortars were likely harming troops' brains.

At the time, the findings were not what a Defense Department at war wanted to hear.

"It completely changes the landscape when you say most of these exposures are happening in training and are preventable," David Borkholder, a professor at Rochester Institute of Technology who founded BlackBox Biometrics Inc., maker of the Blast Gauge System, told Military.com in 2022.

In 2018, a Center for a New American Security report found that extensive use of shoulder-fired weapons such as the Carl Gustaf recoilless rifle, the M72 Light Anti-Armor Weapon^[11] and AT4 Rocket Launcher^[12] exposed users to blast overpressure, potentially causing brain damage.

Other studies continued to show that moderate to severe blast exposure caused damage to blood vessels, nerve damage and brain inflammation.

A series of articles in The New York Times last year renewed interest in the topic, with the publication detailing symptoms among artillery troops^[13] such as hallucinations, seizures and suicidal thoughts, and among Navy SEALs^[14] who died by suicide and whose post-mortem examination showed damage patterns^[15] consistent with blast exposure from training.

Related: They Said the Rise in Military Suicide Is a Mystery. Traumatic Brain Injury May Be an Answer.^[16]

New military recruits will get baseline cognitive testing and training instructors will have to stand farther away when some weapons are being fired under new Pentagon policies aimed at reducing troops' risk of brain injuries from blast exposure.

The policies were laid out in a memo from Deputy Defense Secretary Kathleen Hicks released Friday afternoon that comes after increasing pressure from lawmakers to do more to prevent brain injuries. The updates also come after reporting from Military.com and other news outlets on the risks of brain injuries among service members and the Pentagon's slow response to the issue.

"The health and well-being of our service members and civilian personnel are crucial to maintaining the U.S. military's status as the most capable and ready fighting force in the world," Hicks said in a statement about the memo. "To maintain that advantage, I have directed the development of a comprehensive policy to manage risks associated with blast overpressure, integrating various department and military service initiatives and directives into a unified Warfighter Brain Health (WBH) Initiative."

Read Next: Fatal Marine Osprey Crash Investigation Points to Pilot Error, Safety Lapses While Revealing Heroic Rescue Effort^[1]

Blast overpressure is any pressure caused by a shockwave that is over the normal pressure in the atmosphere. A growing body of evidence indicates that troops are at risk of brain injury-causing blast overpressure not just from enemy attacks but also from routine military activities such as repeatedly firing artillery. Further, those brain injuries are causing devastating symptoms for service members and veterans, such as increased risk of suicide, as Military.com previously reported^[2].

To address those issues, Hicks' memo^[3] lays out a series of new steps to monitor service members' brain health and reduce their exposure to blasts.

Perhaps most significantly, the department will track all service members' cognitive health from the beginning of their careers -- a step lawmakers have been calling for but that Pentagon officials have previously been reluctant to embrace. The memo directs the Pentagon to ensure that all new active-duty and reserve recruits undergo cognitive assessments as part of the entry process by the end of 2024.

Each service will also have to identify and track all personnel who are potentially exposed to blast overpressure in a Defense Department database, with special priority placed on troops who have a specialty or rating that, "by nature of operational activities, regularly places them at increased risk of [blast] exposures," the memo says.

A table included in the memo lists nearly 100 jobs in the Army^[4], Navy^[5], Marine Corps^[6] and Air Force^[7] at increased risk of blast overpressure, showing many of the specialties are combat arms, special operations, or weapons technicians and operators.

Noting that cognitive impairment has been seen from blasts with as low as 4 pounds per square inch of pressure, another table attached to the memo lists weapons in the military's inventory that meet that threshold. The weapons include .50 caliber guns and rifles, mortars and howitzers, as well as a few shoulder-mounted anti-tank weapons and breaching explosives.

As such, the memo directs that certain personnel involved in training, such as instructors and range safety officers, should stand farther away when those weapons are being fired. For example, the minimum standoff distance for an M3 anti-armor and anti-personnel weapon system is 16 feet, while the minimum for an M107 Sniper Rifle^[8] is 7 feet. Still, the memo says that personnel can stand closer if standing farther away "inadvertently introduces a safety risk."

While the new policies address some of lawmakers' concerns, they do not go as far as lawmakers have been calling for. For example, a wide-ranging bipartisan bill introduced earlier this year^[9] would require modifying some weapons systems to reduce the blast exposure to the person firing the weapon.

Elements of that legislation were included in both the House and Senate version of this year's annual defense policy bill that Congress is expected to pass into law before the end of the year.

A spokesperson for Sen. Elizabeth Warren, D-Mass., one of the lead sponsors of the blast exposure bill, did not respond to a request for comment Monday on the Pentagon's new policy. But she and other lawmakers have previously pushed the department to take more aggressive action.

"The department needs to take more urgent action to mitigate blast overpressure and support service members," Warren; Sen. Joni Ernst, R-Iowa; Rep. Ro Khanna, D-Calif.; and other lawmakers wrote in a letter to a government watchdog^[10] last month. "Otherwise, troops will continue to struggle to get the care they need and deserve."

Although evidence was growing as early as the late 2000s that blast overpressure was responsible for head injuries unique to military service members, the Defense Department dragged its heels to address the problem.

In 2008, the Army's Program Executive Office Soldier fielded a sensor with the 101st Airborne Division to measure pressure waves from blasts, while at the same time, the Defense Advanced Research Projects Agency sought wearable technology to measure the level of blast experienced by service members.

The systems had drawbacks. The Army's gauges measured what happened to a soldier's helmet -- including any movements, bumps or strikes -- and used an algorithm to estimate the concussive impact and extent of injury, without actually measuring what was happening inside the wearer's head. DARPA's project, which got underway in 2010 and measured overpressure from three different sensors on a service member's body armor, detected the most exposure in troops whose jobs were to fire heavy weapons.

The data seemed to indicate that repeated exposure to blasts that were much more common than roadside bomb attacks could add up and cause brain injuries, and that weapons such as recoilless rifles, shoulder-fired rockets, artillery and mortars were likely harming troops' brains.

At the time, the findings were not what a Defense Department at war wanted to hear.

"It completely changes the landscape when you say most of these exposures are happening in training and are preventable," David Borkholder, a professor at Rochester Institute of Technology who founded BlackBox Biometrics Inc., maker of the Blast Gauge System, told Military.com in 2022.

In 2018, a Center for a New American Security report found that extensive use of shoulder-fired weapons such as the Carl Gustaf recoilless rifle, the M72 Light Anti-Armor Weapon^[11] and AT4 Rocket Launcher^[12] exposed users to blast overpressure, potentially causing brain damage.

Other studies continued to show that moderate to severe blast exposure caused damage to blood vessels, nerve damage and brain inflammation.

A series of articles in The New York Times last year renewed interest in the topic, with the publication detailing symptoms among artillery troops^[13] such as hallucinations, seizures and suicidal thoughts, and among Navy SEALs^[14] who died by suicide and whose post-mortem examination showed damage patterns^[15] consistent with blast exposure from training.

Related: They Said the Rise in Military Suicide Is a Mystery. Traumatic Brain Injury May Be an Answer.^[16]